How can I determine if I have an overstay issue when I have documents with conflicting information?

I entered in 2008 with a tourist visa, extended my stay and received a I-797a instead of the I-94. On the long form, the date of departure (the allowable stay) was 2009. However, on the I-797a which is the form that is actually attached to the passport, there is no date. I am still in the U.S., and my company is a federal contractor, meaning doing business with the government. I am interested in pursuing a visa through EB-5, but what are the chances that I am out of status? If I go through the process of EB-5, will I be able to adjust my status on U.S. soil, or will they know I overstayed and I''ll need to go through my consulate in my country? If the latter is true, what are the chances that I will be automatically be barred for 10 years?

Answers

An approval notice will provide the date that your extension ends, usually you get six months. As such, it is impossible that you are still in lawful, nonimmigrant status, and it is evident you must depart the U.S. to get a new visa. Yes, you are subject to a 10-year bar to admission if you leave the U.S.

Michael E Piston

Immigration Attorney

Answered onApril 18, 2014

If the last form I-94 you received expired in 2009, then my preliminary assessment (subject to confirmation if and when I formally review your documents and am engaged for that purpose) is that you are ineligible to adjust status in the U.S. because you have failed continuously maintain a legal status here and further if you depart that U.S. to apply for an immigrant visa at a consulate you will be barred from returning for 10 years because you have been unlawfully present in the U.S. (past the expiration of your form I-94) for a year or more. You may apply for a waiver of the 10 year bar if and only if you have a U.S. citizen or lawful permanent resident parent or spouse who would suffer extreme hardship if you are not permitted to return. There may be a way around this, but it is too complicated to explain in this response.

Philip H Teplen

Immigration Attorney

Answered onApril 18, 2014

It sounds like you are out of status which is a major problem. You should contact an immigration attorney immediately.

The filing of an I-526 is not dependent on the location of the investor. The investor can either be in or out of the U.S. If the investor cannot adjust in the U.S. then the investor will pursue conditional permanent residency through the U.S. consulate.

If you entered on a tourist visa 2008 and extended once and are still here, then you may have a 10-year bar issue. The tourist visa is extended for six months maximum. What I am not certain is what do you mean your company is a federal contractor? Is this a company that you own and was I-797 based on some other extension/change other than tourist visa? As the Federal Government usually checks whether their contracting company and their employees are here in legal status, I wonder how you are getting the contract. I would encourage you to consult with an experienced immigration attorney with all your documents before considering the EB-5 option. Q & A

If you have not applied for a work visa, it seems like you have been out of status since 2009. This makes you ineligible for adjustment of status in the U.S. and subject to the 10-year bar if you leave the U.S.

It sounds like you need to find out whether you are currently n status first, before you take any further steps toward petitioning for immigration benefit. If your employer is a federal contractor, they should be very careful about making sure all their employees are validly in status to ensure they do not lose the contract. You should check with your employer and their attorney to make sure proper extensions of stay have been filed to maintain your status.

Retaining U.S. immigration counsel who will review your entire U.S. immigration history will be essential. Requests to the U.S. government for all information they have on your immigration processes is an option.

Add your comment

Use a Facebook account to add a comment, subject to Facebook's Terms of Service and Privacy Policy. Your Facebook name, photo & other personal information you make public on Facebook will appear with your comment.